What is Wage Garnishing
In the course of recovering debt, a creditor may obtain a court order mandating your employer to garnish wages paid to you. Wage garnishment means a portion of your earnings are deducted by your employer and sent to the creditor to pay the debt owed.
Wage garnishment can constitute a real blow for you, especially if you have a lot of outstanding financial obligations, or if what is left is tremendously inadequate to sustain you and your family. If you are in debt and have had your wages garnished, you can take steps to stop wage garnishment in California.
Federal law allows for wage garnishing of the lesser of either 25% of disposable earnings, or the difference between the weekly disposable wages and 30 times the federal minimum hourly wage ($7.25).
Compared to the Federal law on wage garnishment, California offers more respite to debtors with regards to maximum legal limits.
The Law in California
The fundamentals of wage garnishment California operates are similar to the federal law on wage garnishment, with some distinction in the terms. The only way a creditor can garnish your wages is by obtaining a judgment of a court of law declaring you are indebted to them.
However, this court process is not required with regards to the following debts:
- Federal or State Taxes
- Child Support
- Student Loans
Your wages can be garnished without a court judgment when it comes to anyone of the above.
The law requires that your creditors provide you with legal notice of garnishing. You must be presented an Earnings Withholding Order and Employee Instructions which spell out the terms of your wage garnishment. These documents highlight the process of claiming exemptions and states in plain language how much of wage is being garnished.
The Californian law sets the limits of wage garnishment as the lower amount between:
- A 25% of disposable wage (wages minus legal deductions)
- The difference between your disposable weekly salary and 40 times California’s minimum fee ( $11 as at January 2018)
An example, in this case, would be Mr. A.
Assume Mr. A makes $500 per week after legal deductions like taxes. If his wages are to be garnished, it would either be:
- 25% of $500, which is $200, or
- $500 minus (40 × $11), which amounts to $60
The lower amount is the amount to be garnished, meaning only $60 will be deducted from Mr. A’s weekly paycheck.
No matter how many creditors you have, the maximum limit of your wages that can be garnished is 25%. If you have more than one garnishment order, only a total of 25% can be deducted, meaning creditors have to share from that.
How to Stop Wage Garnishment
Consult/Hire an Attorney
This should be your first course of action. Contact an expert in California wage garnishment and seek legal advice on the best way to resolve the situation. Your lawyer will examine the details of your cases, to spot loopholes, breaches of procedure, and craft an effective strategy.
Your wage garnishment lawyer can help you dispute the garnishment order if:
- You have entirely discharged your debt to the creditor
- The amount deducted exceeds the legal limits
- A breach of proper procedure. For instance, your creditor failing to give notice of garnishing
- You intend to vacate the original judgment granting such an order.
Your attorney will also make you aware of your rights, the exemptions you are qualified to, and help you set the plans in motion. If you also feel that the wage garnishment order represents an undue hardship to you and your family and that you are unable to supply on what is left of your disposable income reasonably, then consulting with a lawyer will expedite you resolving this case.
Negotiate Terms with Creditor
Your attorney may recommend that you renegotiate terms with your creditor, to either reduce the amount garnished or to extend your repayment period. Your lawyer can contact your creditor or their legal team using the contact provided on the Earnings Withholding Order given to you as notice.
When you negotiate a reduction or discontinuation of wage garnishing, provide tangible reasons for these request. Arm yourself with facts, documents, and a reasonable argument pleading your case. At times, as a sign of good faith, a creditor may agree to your demands if you can show how the wage garnishment is inflicting hardship on you.
Negotiations are also an effective method of Alternative Dispute Resolution, avoiding the hassle of the courtroom. You can work out a feasible repayment plan with your creditor, and reduce or stop the ongoing wage garnishment.
Ensure that you have legal representation during this negotiations and that any agreements are made in writing. Upon successful negotiations, the new deal becomes legally binding and supersedes the wage garnishment efficiently halt these mandatory deductions.
File an Exemption
The State of California has allowed for victims of wage garnishment get some remedies and solace under certain conditions. A claim of exemption is usually a plea showing how much financial hardship such a wage garnishment order is causing to you.
If your net earnings after garnishing are incapable of taking care of yourself and members of your household, i.e., providing essential amenities, like food, shelter and clothing. This sort of financial hardship can be fixed by filing a claim for exemption.
Procedure for Filing Exemption Claims
To file a wage garnishment order exemption, these are the steps to follow:
Begin the process of recording an exemption claim within ten days of you receiving the notice of wage garnishment, (that is ten days from receiving the Earnings Withholding Order).
Obtain Legal Documents
You will need to obtain and fill out two forms. You can either get them from a county clerk in your vicinity or download them here. The Claim of Exemption (Form WG-006) and Financial Statement (Form WG-007).
Fill out the Claim of Exemption form with details on how much of your earnings would reasonably ensure the survival of you and your family. The Financial Statement form involves a comprehensive break down of all income and expenditure.
Be sure to fill out both forms carefully and honestly as you are under oath.
Make two copies each of both of the forms. You will submit the originals and one extra copy each to the official who initially served the Earnings Withholding Order. Keep one copy each for documentation and safekeeping.
It is important to note that your wages will still be garnished during the period of filing a claim for exemption.
If your creditor does not dispute your claim of exemption, your employer will be ordered to either stop garnishing your wages or garnish a lower amount depending on what you filled out in your Claim of Exemption.
However, if your creditor opposes your claim of exemption, you will have to attend court proceedings. The court will consider the merits of your case and decide whether or not to grant your claims of exemption based on the details contained in your exemption forms.
Ensure that you have legal representation or at least seek legal counsel before such a court hearing. Provide the court with evidence showing how dire your financial situation is and proof of how much the wage garnishment has affected your quality of life.
The court will then either approve your claim of exemption or uphold the original wage garnishment order.
Filing bankruptcy can be a weapon of last resort to stop wage garnishment by your employer on behalf of your creditors. As soon as you file for bankruptcy an Automatic Stay comes into play- your employer immediately ends garnishing your wages.
Bankruptcy may have garnered a negative connotation over the years, but it may be the best option if you have run out of options. It is an opportunity to reorganize your finances and get your debts under control. During bankruptcy, a repayment plan is created to pay off your debts. This may involve auctioning off some of your property but the silver lining is that at the end of your bankruptcy period your debts are discharged (i.e., wiped away). You get a chance to reset your finances and start afresh without a suffocating debt.
Consult with one of our learned wage garnishment lawyers who will help you understand your options and guide through the process. There are two main types of bankruptcy available for individuals: Chapter 7 and Chapter 13, which both have different procedural steps and effects.
For example, filing a Chapter 7 bankruptcy claim does not have the critical automatic stay order allowing wage garnishment to continue during the process. A Chapter 13 bankruptcy claim will trigger automatic stay immediately stopping all wage garnishment by your employer. However, your debt portfolio still has to be serviced with a repayment plan that lasts between 3-5years.
When you file for bankruptcy at a court of law, the court will typically send a notification of submitting to your creditors and employer, causing all actions, including garnishments to cease. However, this notification may take up to a week to be sent. To expedite efforts to stop the garnishment, provide your employer with the case number of your bankruptcy claim, the date and court of filing, which is enough to stop the garnishment immediately.
At the end of bankruptcy, your wages are unaffected by garnishments as your debts to creditors are usually discharged. It is essential to make adequate preparations before filing bankruptcy, consult an attorney, dig up financial records, and make prompt payments because if your bankruptcy claim fails your creditors are within their rights to continue wage garnishment.
Recouping Lost Wages
An added advantage of filing for bankruptcy is that you can recover some of your garnished wages if you meet some criteria. First, your payments must have been garnished 90 days before the date of the filing. Secondly, the amount garnished must exceed $600, and lastly, you can claim an exemption on the amount garnished.
Before attempting to recover garnished wages, you must weigh the pro and cons. You are going to have to file a lawsuit, which means incurring legal fees and other charges. Discuss your options with one of our expert California wage garnishment lawyers, to gain clarity on the most effective course of action.
The hassles of life, unfortunate circumstances, or emergencies can lead to you taking on more debt than you can manage. When this happens, you are at the mercy of your creditors, and they will use every tool at their disposal to collect their debt.
Wage garnishment is an especially destabilizing debt collection process as it goes directly to the source of your livelihood. In this dwindling economy, your barely sufficient income is further depleted by as much as 25%. This can cause undue strife and hardship to not only you but your loved ones.
Apart from reducing the amount available for you and your family’s well-being and sustenance garnishment also places you at the risk of unemployment. Although California law prevents your employer from firing you over one garnishment order anything beyond that is a risky territory.
At Wipe Away Debts, our legal practitioners have spent years mastering the intricacies of California and Federal laws on wage garnishment, bankruptcy, and debt collection. Together, we will take stock of your unique circumstances devise a viable plan to help you get your life back on track.
Do not let debt way you down, when you have legally guaranteed rights and options. Debts can be uncomfortable and a source of stress but ignoring or failing to act only makes it worse. Let one of our wage garnishment lawyers examine your case and help you climb out of the seemingly insurmountable financial situation you may find yourself in at any given time.